O'Hare v. City of Detroit

• Decision Date: 02 December 1960
• Docket Number: A,9,Nos. 8,s. 8
• Parties: Elwood O'HARE, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of Street Railways, Willard D. Mullins, Dossin's Food Products, a Michigan Corporation, and Robert C. Pearson, Defendants and Appellees. Cyril VAN KERSCHAEVER, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of Street Railways, Willard D. Mullins, Dossin's Food Products, a Michigan Corporation, and Robert C. Pearson, Defendants and Appellees. pril Term.
• Court: Michigan Supreme Court

Page 538

106 N.W.2d 538

362 Mich. 19

Elwood O'HARE, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of

Street Railways, Willard D. Mullins, Dossin's Food

Products, a Michigan Corporation, and

Robert C. Pearson, Defendants

and Appellees.

Cyril VAN KERSCHAEVER, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of

Street Railways, Willard D. Mullins, Dossin's Food

Products, a Michigan Corporation, and

Robert C. Pearson, Defendants

and Appellees.

Nos. 8, 9, April Term.

Supreme Court of Michigan.

Dec. 2, 1960.

Ward, Plunkett & Cooney, Detroit, for plaintiffs and appellants.

Nathaniel H. Goldstick, Corp. Counsel, Alfred Sawaya, Andrew F. Valenti, Assts. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench.

EDWARDS, Justice.

On motion in the Wayne circuit court plaintiffs' suits in these 2 cases were dismissed as to the city of Detroit only on the ground that they were barred by the doctrine of governmental immunity. On appeal plaintiffs claim that their actions come within a statutorily created exception to the governmental immunity doctrine. The sole question for our review is:

'Does the common-law doctrine of municipal immunity while performing governmental functions yield to the specific statutory liability imposed on the municipality for failing to maintain its streets in a condition reasonably safe and fit for travel?'

The essential facts as recited in plaintiffs' declarations may be quickly stated. Plaintiffs suffered injuries in a collision between the car in which they were riding and a D. S. R. bus. The accident took place at the intersection of Moran and Milwaukee about 7:00 a. m. on February 24, 1956.

Ordinarily, Milwaukee is a stop street. However, a stop sign requiring Moran traffic to stop had been knocked down the preceding day at about 7:45 a. m. by a truck belonging to defendant Dossin's Food Products. Plaintiffs were traveling on Moran and entered Milwaukee without seeing the stop sign and without stopping. Plaintiffs claim that the accident and their injuries were caused by the negligence of Dossin's driver in knocking the sign down and the negligence of the defendant city of Detroit in failing to put it back up or to erect some warning in its place.

In plaintiffs' declarations and at pretrial, plaintiffs claimed both actual and constructive notice to the city of the fact that the sign was down prior to the accident. This is vigorously disputed by defendant city of Detroit but, of course, at this point, since we deal with dismissal of the declarations before trial, we accept as true plaintiffs' well-pleaded allegations. General Motors Corporation v. Attorney General, 294 Mich. 558, 293 N.W. 751, 130 A.L.R. 429; Cortez v. Ford Motor Co., 349 Mich. 108, 84 N.W.2d 523.

Defendants pleaded governmental immunity as an affirmative defense and moved to dismiss. See Richards v. Birmingham School District, 348 Mich. 490, 83 N.W.2d 643; Penix v. City of St. Johns, 354 Mich. 259, 92 N.W.2d 332. Plaintiffs, in disputing that defense below and here, relied upon the statute specifically imposing liability upon municipalities for bodily injuries resulting from municipal failure to keep the streets reasonably safe and fit for travel.

'Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.' C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591).

Our question then becomes whether or not the failure of the city of Detroit to replace or warn concerning the knocked-down stop sign represented 'neglect to keep * * * streets * * * in condition reasonably safe and fit for travel' within the meaning of this statute.

The trial judge concluded that the statute was not applicable. He said:

'It is to be noted, however, that this section deals with the liability of a city for injuries arising out of the failure to maintain public highways and streets in reasonable repair. The failure of a city to maintain a stop sign does not come under this heading. This is clearly a function of a different character, and has been generally held to be a governmental function with no liability attaching for failure to perform.'

We agree that the establishment and maintenance of stop signs is a governmental function. Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.W.2d 357, 161 A.L.R. 1391; Martin v. City of Winchester, 278 Ky. 200, 128 S.W.2d 543.

In these 2 cases, which were cited and relied upon by the trial judge, it was held that suits based upon allegedly negligent exercise of legislative discretion to erect or not to erect stop signs were barred by the doctrine of governmental immunity.

We do not, however, deal in the instant case with any challenge to the discretionary right of the city to erect or not to erect, or to remove, stop signs by legislative enactment (see C.L.S.1956, § 257.610 [Stat.Ann.1959 Cum.Supp. § 9.2310]). The current declarations are based upon a claim of negligence in the city's failing properly to maintain a stop sign which had been duly authorized and placed in position.

Our current declarations claim the advantage of the specific statutory exception to the immunity doctrine which we have quoted.

We cannot agree with the trial judge that 'failure of a city to maintain a stop sign does not come under this heading' of 'failure to maintain public highways and streets in reasonable repair.'

It seems obvious to us that once a municipality has decided to exercise the discretion vested in it to declare one street a through street and erect a stop sign facing the subordinate street, the stop sign becomes an important part of the physical appurtenances of the street.

This Court has previously held this statute to impose liability on local governments for 1) failure to maintain a sidewalk so as to prevent the existence of shallow holes (Wolverton v. Village of Saranac, 171 Mich. 419, 137 N.W. 211); 2) failure to replace a rotten light pole before it fell (Rufner v. City of Traverse City, 296 Mich. 204, 295 N.W. 620); 3) failure properly to ground an electric light pole (Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97, 19 A.L.R.2d 333); 4) failure to guard a hole in a sidewalk under repair (Belyea v. City of Port Huron, 136 Mich. 504, 99 N.W. 740); 5) failure to post proper signs, lights or warnings concerning dangerous obstructions or hazards (Joslyn v. City of Detroit, 74 Mich. 458, 42 N.W. 50; Bonneville v. City of Alpena, 158 Mich. 279, 122 N.W. 618; Longstreet v. County of Mecosta, 228 Mich. 542, 200 N.W. 248); 6) failure to remove a clothesline strung across a public sidewalk (Burgdorf v. Holme-Shaw, 356 Mich. 45, 96 N.W.2d 164); and 7) failure to replace the center post to a safety barrier, which had been broken off (Maxson v. Bay County, 290...